In a speech last night, retired Supreme Court Justice John Paul Stevens made clear his displeasure with the Court's recent decision in Connick v. Thompson and urged congressional action to hold prosecutors clearly liable for the civil rights violations of their underlings.
It is rare but not unheard of for retired justices to comment critically about the Court's work, especially about a specific recent decision. But it seems in keeping with how the 91-year-old Stevens plans to spend his retirement, speaking out on issues of the day and, as he recently revealed, writing a book.
Stevens spoke at a New York dinner in his honor sponsored by the Equal Justice Initiative, the Alabama-based organization that supports indigent defendants and prisoners.
By a 5-4 vote, the Court in Connick overturned a $14 million judgment awarded to a man who spent 14 years on death row in Lousiana before his convictions were overturned. At issue was whether the New Orleans prosecutor could be found guilty of a civil rights violation for failure to train his staff, based on a violation of Brady v. Maryland — a precedent that requires prosecutors to turn over exculpatory material to the defense. Justice Clarence Thomas wrote the majority opinion.
Stevens highlighted what he said were the "shocking facts" of the case, which pointed to prosecutorial misconduct well beyond a single act — including concealment of blood evidence and of conflicting police reports. Stevens indicated he agreed with dissenting Justice Ruth Bader Ginsburg that the jury was correct in finding deliberate indifference on the part of the prosecutor.
Justice Antonin Scalia came in for criticism from Stevens. Stevens quoted from Scalia's statement in a concurrence that "there was probably no Brady violation at all" in the case, except by one deputy sheriff which, Scalia said, was "a bad-faith knowing violation" that was not the result of lack of training. Stevens said Scalia had "either overlooked or chosen to ignore the fact that bad faith, knowing violations may be caused by improper supervision."
That point led to Stevens' broader assertion that reform is needed to apply respondeat superior principles to prosecutors in the same way they apply to private employers. In other words, he concluded, district attorneys need to be held liable for wrongdoing by employees. Stevens noted that prosecutors' immunity from that liability is a "judge-made rule" stemming from dicta in the 1978 decision Monell v. New York City Department of Social Services. That rule was a mistake, Stevens said, especially given that political pressure gives prosecutors little incentive to train their underlings on Brady. Stevens said the problem could be fixed — as with other statutory interpretations by the Court — by an act of Congress, amending the civil rights protection known as Section 1983.
Such a change, said Stevens, would "produce a just result in cases like Thompson's in which there was no dispute about the fact that he was harmed by conduct that flagrantly violated his constitutional rights."